Did Maine's 2011 voter-ID/registration bill (LD 1376) impose a state-funded mandate on towns and cities under Maine Constitution Article IX, § 21?

Plain-English summary

In 2011, Maine's Legislature was considering LD 1376, "An Act to Preserve the Integrity of the Voter Registration and Election Process." The bill made several big changes to how Maine ran elections. It eliminated in-person voter registration on election day and the two business days before. It restricted issuance of absentee ballots in the last three business days before election day to a small set of unforeseen-circumstance categories. And it added a brand-new "provisional ballot" procedure, modeled on the federal Help America Vote Act (HAVA), for voters who showed up at the polls and declared they were already registered there but didn't appear on the voting list.

Senators Hobbins and Alfond asked Attorney General William Schneider whether LD 1376 was a "mandate" within the meaning of Maine Constitution Article IX, § 21. That section says the State cannot require local governments to expand or modify activities in a way that necessitates additional expenditures from local revenues, unless the State annually funds 90% of those expenditures, or the bill is enacted by 2/3 of each chamber. There are also statutory exceptions, including for state requirements that just track federal mandates the locality already has to comply with (30-A M.R.S. § 5685(3)(D)).

The AG's analysis ran in two independent parts.

Part one: no additional expenditures. The AG agreed that LD 1376 modified municipal activities: provisional balloting was a new task, and the absentee-ballot deadline narrowed. But the AG concluded the modifications were unlikely to necessitate additional expenditures of local revenue, for four reasons:

1. Fewer voters would be eligible to vote provisionally than were eligible to register-and-vote on election day under the existing law. Election-day registration was open to any qualified person; provisional balloting was only for people who declared under oath that they were already registered. So the elimination of election-day registration would more than offset the addition of provisional balloting.
2. Narrowing absentee balloting in the three days before election day would reduce, not add to, staff workload.
3. Provisional balloting is structurally similar to challenged-ballot procedures already in 21-A M.R.S. § 673, which existing election workers handle without extra staffing.
4. The bill gives clerks up to three business days after election day to resolve provisional ballots, with election-day resolution required only "if possible." That means the new resolution work could be done by existing municipal staff during regular hours after election day, exactly the same staff that would no longer be processing election-day registrations.

Part two: federal mandate exception. Even if LD 1376 did impose new local costs, the federal mandate exception in 30-A M.R.S. § 5685(3)(D) would apply. HAVA, the federal Help America Vote Act of 2002, required states to adopt provisional balloting in all federal elections starting January 1, 2004 (42 U.S.C. § 15482(a), (d)). Maine had been compliant since 2004 through a different mechanism: election-day registration filled the role of provisional balloting for voters whose names didn't appear on the list, and the challenged-ballot process filled the role for voters whose eligibility was disputed. Senator Susan Collins had specifically asked HAVA's sponsors during the 2002 floor debate whether Maine's existing system would meet the federal requirements, and was told it would (148 Cong. Rec. S10494-02 (Oct. 16, 2002)).

LD 1376 would not exceed federal requirements; the bill's text closely tracked HAVA. While HAVA only governs federal elections directly, in Maine federal and state elections happen on the same ballot under the same procedures (21-A M.R.S. § 601(3)), so any HAVA-driven change to Title 21-A automatically governs all Title 21-A elections. State referendum elections in odd years and special vacancy elections do happen separately, but the AG concluded a court would view the bill's net effect as a wash even for those.

The bottom line: LD 1376 was not a mandate under Article IX, § 21 or 30-A § 5685, so the State did not have to either fund 90% of any local cost or enact the bill by 2/3 vote of each chamber.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. LD 1376 itself was overturned by Maine voters via a people's veto referendum in November 2011, restoring election-day registration. The constitutional mandate framework in Article IX, § 21 remains, but specific Title 21-A statutes have been amended numerous times since 2011.

Background and statutory framework

Article IX, § 21 of the Maine Constitution was ratified in 1992 to address what was perceived as a chronic problem: the Legislature passing duties to local governments without funding them. The text quoted in the opinion reads in full:

For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the votes of 2/3 of all members elected to each House. This section must be liberally construed.

To qualify as a mandate, an action must (a) require local governments to expand or modify activities, and (b) the modification must "necessitate additional expenditures." Both prongs are required. Even if both are met, 30-A M.R.S. § 5685(3)(D) provides a "federal mandate exception": the State doesn't have to fund local costs incurred to comply with federal law or regulation, except where the State imposes requirements exceeding the federal requirements.

LD 1376 made three categories of change to Title 21-A:
- Voter registration: Eliminated election-day registration and registration on the two business days before (proposed §§ 3, 4, repealing existing 21-A M.R.S. § 122(4)).
- Absentee ballots: Restricted issuance after the third business day before election day to voters who unexpectedly would be absent, were physically unable to leave home, or were stranded coastal-island residents (proposed § 23, replacing 21-A M.R.S. § 753-B(2)).
- Provisional balloting: Added a new 21-A M.R.S. § 673-A based on HAVA's structure. A voter declaring on oath that they were already registered in the jurisdiction but missing from the voting list would receive a provisional ballot, sealed in an affidavit envelope, logged separately from regular ballots, and resolved by the clerk within three business days of the election based on the voter's actual registration record.

The AG's reasoning compared these new tasks to the workload they replaced. Election-day registration under existing 21-A M.R.S. § 122(4) was time-consuming for clerks: every walk-in voter required identity and residency verification, a registration application, election certificate issuance, and post-election data entry into the central voter registration system (21-A M.R.S. § 152(2)). Provisional balloting was substantially less work per voter (per Secretary of State estimates the AG cites in footnote 3), and processing absentee ballots in the final three days had been a heavy staff load that LD 1376 cut back.

The challenged-ballot framework already in Title 21-A also did similar things to provisional balloting, just for a different reason. Section 673(1) requires a challenger to fill out an affidavit. Section 673(2)-(3A) requires the ballot to be marked with a unique number and recorded on a list. Section 696(1) requires the challenged voter's eligibility to be resolved post-election only if the challenge could affect the outcome. Provisional ballots have similar paperwork; what's new is that every provisional ballot's eligibility must be resolved (within three business days) regardless of whether it could change the outcome.

The federal mandate exception's "exceeds federal requirements" clause was the AG's hardest call. HAVA only governs federal elections. Maine's elections are administered by Title 21-A, which sweeps in federal, state, county, and local elections together; provisional balloting under § 673-A would apply to all of them. The AG read the practical reality, that Title 21-A administration is unified, as making the federal-law trigger sufficient even for provisions that, in form, also covered state and local elections. The AG also pointed to the net-zero or net-negative effect on local government workload across all elections.

A separate footnote (footnote 10) noted that for purely local elections, 21-A M.R.S. § 2501 brings them under Title 21-A by default unless the municipality has a charter exception, so the new provisional ballot system would also apply at the local level.

Common questions

Q: What is "mandate funding" under Article IX, § 21?
A: A constitutional rule (added by Maine voters in 1992) that says the State cannot push new costs onto local governments through legislation without either (a) funding 90% of the new costs from new state appropriations or (b) enacting the bill by a 2/3 vote of each legislative chamber. The provision is to be "liberally construed."

Q: What is provisional balloting?
A: A failsafe procedure in election law: a voter who shows up at the polls and asserts they're a registered voter, but isn't on the voting list, is allowed to cast a ballot that's sealed in a special envelope. The election officials then check the registration records after the polls close (or, here, within three business days). If the voter was actually registered, the ballot counts; if not, it doesn't.

Q: What is the Help America Vote Act?
A: A 2002 federal law (HAVA) passed in the aftermath of the 2000 election. Among other things, it required states to adopt provisional balloting for federal elections starting January 1, 2004. 42 U.S.C. § 15482.

Q: How was Maine compliant with HAVA without provisional balloting before 2011?
A: Maine had election-day registration (anyone could register and vote on election day) plus the challenged-ballot procedure for cases where eligibility was disputed. Together those two mechanisms achieved what HAVA's provisional ballot was meant to achieve. Senator Collins specifically asked HAVA's sponsors during the floor debate whether Maine's system would qualify, and was assured it would.

Q: Did the AG say no Maine elections law could ever be a mandate?
A: No. The opinion's logic depended on the specific changes in LD 1376, the elimination of election-day registration creating workload savings that offset the new provisional balloting work. A different elections bill that added work without subtracting any could trigger Article IX, § 21.

Q: What happened to LD 1376?
A: The Legislature passed it. Maine voters then overturned it via a people's veto referendum in November 2011, restoring election-day registration. The AG opinion's analysis of Article IX, § 21 stands, but the underlying legislation no longer applies.

Q: Does the federal mandate exception apply only to costs that exactly track federal law?
A: No. The exception applies to any cost incurred to comply with a federal law or regulation, except where the state requirements "exceed" the federal requirements. The AG read "exceed" structurally rather than formally, looking at whether the state's burden is functionally beyond what federal law would require, not whether the state law swept slightly more elections into the same procedure.

Citations and references

Constitutional and federal authority:
- Maine Constitution, art. IX, § 21 (1992 mandate-funding amendment)
- 42 U.S.C. § 15482 (HAVA provisional balloting requirement)
- 42 U.S.C. § 15482(a), (d) (provisional ballot conditions; 2004 effective date)
- 148 Cong. Rec. S10491-02 (Oct. 16, 2002) (Sen. Bond on intent of provisional balloting)
- 148 Cong. Rec. S10494-02 (Oct. 16, 2002) (Sen. Collins-sponsor exchange on Maine system)

Maine statutes:
- 30-A M.R.S. § 5685(3)(D) (federal mandate exception)
- 21-A M.R.S. § 111(1)-(3) (qualifications to register to vote)
- 21-A M.R.S. § 122(4) (election-day voter registration; repealed by LD 1376)
- 21-A M.R.S. § 152(2) (post-election registration data entry)
- 21-A M.R.S. § 601(3) (federal/state/county ballot order)
- 21-A M.R.S. § 673 (challenged ballots)
- 21-A M.R.S. § 673(1) (challenge affidavit)
- 21-A M.R.S. § 673(2), (3), (3A) (annotation and recording)
- Proposed 21-A M.R.S. § 673-A (provisional balloting; LD 1376 § 21)
- 21-A M.R.S. § 696(1) (challenged ballot resolution threshold)
- 21-A M.R.S. § 753-B(2) (absentee ballot issuance restrictions; modified by LD 1376 § 23)
- 21-A M.R.S. § 753-B(8) (in-person absentee voting at clerk's office)
- 21-A M.R.S. § 2501 (municipal elections governed by Title 21-A)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2011/ag_20110616.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

[2011-01]

STATE OF MAINE
OFFICE OF THE ATTORNEY GENERAL
6 STATE HOUSE STATION
AUGUSTA, MAINE 04333-0006

June 16, 2011

Senator Barry J. Hobbins
Senator Justin Alfond
3 State House Station
Augusta, Maine 04333-0003

Dear Senator Hobbins and Senator Alfond:

I am writing in response to your letter of June 10, 2011, in which you inquired whether the provisional balloting system set forth in LD 1376, entitled "An Act to Preserve the Integrity of the Voter Registration and Election Process," would impose a mandate on municipalities pursuant to Article IX, section 21 of the Maine Constitution and thus require state funding of 90% of those costs or enactment by a two thirds vote of all members in each chamber. For the reasons explained below, it is the opinion of this Office that this legislation does not constitute a mandate within the meaning of the constitutional provision.

Article IX, section 21 provides in its entirety as follows:

For the purpose of more fairly apportioning the cost of government and providing local property tax relief, the State may not require a local unit of government to expand or modify that unit's activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures from State funds not previously appropriated to that local unit of government. Legislation implementing this section or requiring a specific expenditure as an exception to this requirement may be enacted upon the votes of 2/3 of all members elected to each House. This section must be liberally construed.

In order to qualify as a "mandate" under this provision, an action of the Legislature must not only require units of local government to expand or modify their activities, but that expansion or modification must "necessitate additional expenditures" of local revenue. Even if legislative action fits this definition of a mandate, the state is not required to fund "costs incurred by local units of government to comply with a federal law or regulation . . . except to the extent that the State imposes requirements or conditions that exceed the federal requirements." 30-A M.R.S. § 5685(3)(D). This provision of the implementing statute is often referred to as the "federal mandate exception."

Summary

While L.D. 1376 does require municipalities to modify and/or expand their activities with respect to voter registration, absentee ballots and provisional ballots, these modifications do not appear to necessitate additional expenditures of local revenues. Instead, it appears likely that the legislation will result in a net decrease in expenditures of local revenues for voter registration and balloting activities during the last few days before and including election day. Accordingly, we conclude that L.D. 1376 does not meet the second part of the mandate test. In addition, we conclude that, certainly with respect to statewide primary and general elections, and most likely with respect to all elections conducted under Title 21-A, the federal mandate exception in 30-A M.R.S. § 5685(3)(D) applies.

Analysis

I. Expansion or Modification of Municipal Government Activities

L.D. 1376 requires municipalities to modify their activities with respect to voter registration and issuance of absentee ballots in several ways. The bill eliminates in-person voter registration on election day and during the two business days before election day. L.D. 1376, §§ 3 & 4. It also prohibits the issuance of absentee ballots after the third business day before the election (i.e., after the close of business on the Thursday before election day) unless the voter who wishes to vote absentee states that he or she (a) will be unexpectedly absent from the municipality during the entire time the polls are open on election day, (b) has a physical disability or incapacity or illness that makes them unable to leave home or a treatment facility on election day, or (c) is a resident of a coastal island ward or precinct and is unable to travel to the polls on election day. Id. § 23 (repealing and replacing 21-A M.R.S. § 753-B(2)).

The bill also modifies, and arguably expands, the activities of municipal election officials by adding a new provision in Title 21-A on provisional balloting. See L.D. 1376, § 21 (enacting 21-A M.R.S. § 673-A). It requires the issuance of a provisional ballot to any voter whose name does not appear on the incoming voting list but who appears at the polls on election day to vote and declares that he or she is already a registered voter in that jurisdiction. Id. § 673-A(1). The steps required when such a voter appears at the polling place and makes that declaration can be summarized as follows:

• the voter must complete an affidavit (on a form provided by the Secretary of State), stating under oath the reason(s) that the voter believes he or she is a registered voter in that jurisdiction. Id. § 673-A(1);
• the election official must then offer the voter a ballot with a provisional ballot envelope, and after the voter marks the ballot, it must be sealed in the envelope. Id. § 673-A(3);
• all provisional ballots must be logged in by the local officials and segregated from the other ballots in a tamper proof container. Id. § 673-A(4);
• by the close of the polls "if possible," or within three business days after election day, the municipal clerk or registrar must review "all voter registration information on file with the municipality" (including without limitation the voter registration application and attached documentation, incoming voting lists from previous elections, and records in the central voter registration system) to determine whether the voter is eligible — i.e., whether the voter was previously registered to vote in that municipality and remains eligible to vote in that municipality. Id. § 673-A(6);
• if election officials confirm that the individual is a registered voter in that jurisdiction, then they must remove the ballot from the envelope and count it in the same manner as a regular ballot. Id. § 673-A(6)(A) & (B). If they cannot confirm the voter's eligibility, they must mark the envelope as "rejected" and keep it sealed. Id. § 673-A(6)(C);
• the municipal clerk must record the final resolution of all provisional ballots in a log and provide that to the Secretary of State's office. Id. § 673-A(7); and
• the clerk must also update the return of votes cast to reflect any provisional ballots that were cast after determining that the voter was eligible. Id. § 673-A(7).

II. Necessitating Additional Expenditures from Local Revenues

While provisional balloting is clearly a new activity that local election officials may have to perform on election day, there are a number of reasons that requiring this activity does not appear likely to necessitate additional expenditures from local revenues.

First, fewer voters will be eligible to vote by provisional ballot than were eligible to register to vote (and then vote) on election day under the statutory provisions that would be repealed by L.D. 1376. Thus, the addition of provisional balloting should be more than offset by the elimination of election day registration.

The election day voter registration statute that would be repealed by L.D. 1376, § 3, allows any person who meets citizenship, age and residency qualifications to register to vote in that jurisdiction to appear in person at the municipal office and register to vote on any day up to and including election day. [Footnote: See 21-A M.R.S. § 122(4) (election day voter registration); and 21-A M.R.S. § 111(1)-(3) (qualifications to register to vote).] In contrast, the new statutory provision allows provisional ballots to be issued only to those voters who take an oath stating that they are already registered to vote in that municipality. L.D. 1376, § 21 (enacting 21-A M.R.S. § 673-A(1)). [Footnote: Provisional balloting creates a failsafe mechanism designed to protect a voter's ability to vote on election day when the voter was properly registered in that jurisdiction but, due to an administrative error, the voter's name does not appear on the incoming list of registered voters for that election.] A person who was registered to vote in another municipality, or had never been registered to vote in Maine before, would not be allowed to cast a provisional ballot under the proposed new statute. Thus, municipal officials will have fewer provisional ballots to issue and process than they have had voter registrations to process on election day up to now. [Footnote: It is worth noting that election officials in the Secretary of State's office estimate that it should take less time per voter to issue a provisional ballot than to register a voter on election day.]

Second, by narrowing the circumstances under which voters may obtain absentee ballots during the three business days prior to election day, L.D. 1376 will likely reduce the number of absentee ballots that local election officials have to issue and process on those days, thereby resulting in a further net reduction of staff time in many municipalities. [Footnote: The Secretary of State's office also estimates that it should take no more time per voter for a local official to issue a provisional ballot than it takes to issue and process an absentee ballot with an individual voting in person at the clerk's office during the three business days prior to election day. See 21-A M.R.S. § 753-B(8) (procedure for absentee voting in presence of the clerk).]

Third, provisional ballots will be issued to voters on election day by the same election officials who are already at the polls to handle regular and challenged ballots. The steps required to administer the oath to a provisional voter, mark the affidavit form and envelope, create a log, etc. are very similar to what is required to handle a challenged ballot under existing law (21-A M.R.S. § 673). There is nothing in L.D. 1376 to indicate that additional staff would be required to perform these tasks. [Footnote: When a voter's qualifications to vote are challenged by another voter (such as a poll watcher) or election clerk on election day, the challenger must fill out a form affidavit setting forth, inter alia, the grounds for the challenge and the source of information upon which the challenge is based. 21-A M.R.S. § 673(1). The ballot must then be marked with a unique number and recorded on a list by the local election official, and the incoming voting list must be annotated to indicate that the voter cast a challenged ballot. Id. § 673(2), (3) and (3A).]

Fourth, while local election officials are required to resolve the voter's registration status in order to determine whether to count a provisional ballot in the election tally, which is a step not required for challenged ballots, [Footnote: Challenged ballots are automatically included in the election night tally, and the eligibility of the voter who was challenged must be resolved only if the number of challenged ballots cast could make a difference to the outcome of that election. See 21-A M.R.S. § 696(1).] this legislation allows them up to three business days after election day in which to complete the task. See L.D. 1376, § 21 (enacting 21-A M.R.S. § 673-A(6)). The bill directs them to resolve the voter's status on election day only "if possible," which logically means if existing staff are available and have time to do so. Thus, the steps necessary to resolve provisional ballots may be performed by existing municipal staff during regular office hours after election day. If L.D. 1376 is enacted, those same municipal staff will no longer be processing voter registrations from election day. [Footnote: Under existing law, a voter who registers to vote on election day is given an election certificate that authorizes the person to vote that day. 21-A M.R.S. § 122(4). The local registrar must then enter the data in the central voter registration system after election day. Id. § 152(2).]

In sum, there is nothing in the statutory framework created by L.D. 1376 that suggests municipalities would need to hire additional staff or pay overtime to existing staff in order to conduct elections with provisional ballots. Instead, it seems more likely that the elimination of election day voter registration and in-person registration on the two business days prior to election day, coupled with the new restrictions on absentee voting during the three business days before election day, would reduce the overall demands on municipal staff and might therefore result in a net reduction of expenditures from local revenues to administer each election. For these reasons, we conclude that L.D. 1376 does not "necessitate additional expenditures from local revenues" and thus does not constitute a mandate.

III. Federal Mandate Exception

Even if L.D. 1376 were deemed to impose new requirements on local units of government that necessitated additional expenditures, the State would have no obligation to fund 90% of those costs if the federal mandate exception applies. See 30-A M.R.S. § 5685(3)(D). To determine whether the federal mandate exception applies, we must assess: 1) whether the costs (if any) that may be incurred by local units of government are "to comply with a federal law or regulation," and 2) whether L.D. 1376 "imposes requirements or conditions that exceed the federal requirements." We have found no Maine court decisions or prior opinions of this office interpreting the federal mandate exception.

The federal Help America Vote Act of 2002 ("HAVA") required states to adopt a system of provisional voting in all elections for federal office. The federal statute describes the circumstances under which a voter must be issued a provisional ballot as follows:

If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:

42 U.S.C. § 15482(a). As explained in the legislative history, Congress' intent in enacting this provision of HAVA was "not . . . to extend the right to vote by provisional ballot to everyone who shows up at the polls and is not registered." "The intent [was] to provide protection to those who in fact registered but do not appear on the register because of an administrative mistake or oversight." 148 Cong. Rec. S10491-02 (Oct. 16, 2002) (remarks of Senator Bond).

Maine did not have to adopt provisional balloting in 2004 when other states were required to do so because its system of election day registration and challenged ballots provided an alternate means of accomplishing HAVA's objectives. Election day registration accomplished the first objective by protecting a registered voter's right to vote when his or her name is omitted from the incoming voting list in error, and the challenged ballot process addressed the second circumstance calling for a provisional ballot under HAVA — when an election official asserts that the voter is not eligible to vote. [Footnote: Statements in the legislative record confirmed this understanding of Maine's compliance with HAVA. Senator Susan Collins specifically asked during the Congressional debate on HAVA if Maine's system of election day registration and challenged ballots would meet the federal requirements, and she was assured by the bill's sponsors that it would. See 148 Cong. Rec. S10494-02 (Oct. 16, 2002).] While the challenged ballot procedure continues to meet the second reason for provisional balloting under HAVA, the elimination of election day registration under L.D. 1376 would remove Maine's alternative means of complying with the first one.

The language of L.D. 1376, § 21 enacting 21-A M.R.S. § 673-A, closely tracks the provisions of HAVA on provisional ballots and, as indicated in the bill summary, was included to meet those federal requirements.

An argument can be made that the federal mandate exception in Title 30-A, section 5685(3)(D) should not apply when the Legislature changes state law in a manner that triggers federal law requirements not previously applicable. The premise of this argument is flawed, however. Provisional balloting is now and has been, since 2004, a requirement of federal law. [Footnote: HAVA obligated each state to comply with the requirements of provisional voting beginning on January 1, 2004. 42 U.S.C. § 15482(d).] Local units of government in Maine did not have to incur any costs to comply with this part of HAVA at the time because they were already conducting election day registration, and thereby complying through different means. By enacting L.D. 1376, Maine would simply be changing the method by which the State and its local units of government comply with this federal law. Put another way, state law allowing election day registration may have excused local units of government from having to conduct provisional balloting for the past decade, but the repeal of that law does not change the reality that provisional balloting is a requirement of federal law.

Accordingly, the first part of the federal mandate exception in section 5685(3)(D) applies. The only remaining question is whether the last clause of section 5685(3)(D) — "except to the extent that the State imposes requirements or conditions that exceed the federal requirements" — limits its applicability here because HAVA specifically addresses only federal elections.

Elections for federal office in Maine occur every two years, in conjunction with primary and general elections for all statewide and county offices. All elective offices are printed on the same ballot, and the steps involved in administering federal and statewide elections under Title 21-A are the same. See, e.g., 21-A M.R.S. § 601(3) (describing the order of federal, state and county offices on the ballot). Elections that do not coincide with those for federal office do occur, but only occasionally. State referendum elections (e.g., on citizen initiatives, people's veto referenda, bond issues or constitutional amendments) are occasionally held in an odd-numbered year, and special elections to fill a vacancy in the House or Senate may be held at various times.

To the extent L.D. 1376 imposes a provisional ballot system applicable to these elections it could be argued that it "exceed[s] the federal requirements" and thus does not fit within the scope of the federal mandate exception under 30-A M.R.S. § 5685(3)(D). [Footnote: The same argument could be made with respect to purely local elections that are not held in conjunction with state and federal elections. "Except as otherwise provided" by Title 30-A or by municipal charter, the "method of voting and the conduct of a municipal election are governed by Title 21-A." 21-A M.R.S. § 2501. The system of provisional balloting added to Title 21-A by L.D. 1376 would thus apply to local elections until and unless an exception is created in Title 30-A or by municipal charter.] We do not believe a court would construe the statute to reach such a conclusion, however, for several reasons.

First, in substance, the requirements for provisional balloting that local units of government would have to comply with under L.D. 1376, § 21 do not "exceed" the federal requirements outlined in 42 U.S.C. § 15482. As noted above, the language of L.D. 1376, § 21 tracks HAVA quite closely. Second, the requirements for voter registration in Maine, and all other aspects of election administration, are the same whether a voter is appearing at the polls to cast a ballot for federal or state elective office, for local offices, or for a statewide referendum. Thus, any change to Title 21-A enacted to comply with federal law automatically governs the administration of all elections conducted under Title 21-A. Finally, in interpreting the federal mandate exception, a court might well consider the net effect of all the provisions in L.D. 1376 as applied to non-federal elections. L.D. 1376 narrows the scope of in-person absentee voting and eliminates voter registration on election day and for the two previous business days in off-year statewide referendum elections and special elections to fill House and Senate vacancies, as well as purely local elections conducted under Title 21-A. The reduction in these election administration duties should more than offset the addition of provisional balloting, thereby resulting in no net increase in the obligations of local units of government.

Conclusion

For the reasons outlined above, we conclude that L.D. 1376 does not constitute a state mandate within the meaning of Article IX, section 21 of the Maine Constitution and Title 30-A, section 5685. Accordingly, a mandate preamble and vote of two thirds of all the members elected to the House and Senate was not required to enact it, and no state funds to cover local costs need be appropriated, allocated or otherwise designated in accordance with those constitutional and statutory provisions.

I hope this is responsive to your question. If you need any clarification regarding this matter, please let me know.

WILLIAM J. SCHNEIDER
ATTORNEY GENERAL

cc:
Governor Paul R. LePage
Senate President Kevin Raye
Senator Jonathan Courtney
Senator Debra Plowman
House Speaker Bob Nutting
Representative Phil Curtis
Representative Andre Cushing
Representative Emily Cain
Representative Terry Hayes
Hon. Charles E. Summers, Secretary of State
Grant T. Pennoyer, Director, Office of Fiscal and Program Review